CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 octobre 2002

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sFEE8C148 { width:13.68pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s61ED8A2B { width:14.36pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .sE0836E8C { width:7.81pt; text-indent:0pt; display:inline-block } .s138C2B5A { width:5.14pt; text-indent:0pt; display:inline-block } .s34F9E258 { width:5.81pt; text-indent:0pt; display:inline-block } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s391DB599 { width:218.01pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 26322/95 by R.T. and Others against Finland The European Court of Human Rights (Fourth Section), sitting on 8 October as a Chamber composed of   Sir   Nicolas Bratza , President ,   Mr   M. Pellonpää ,   Mr   A. Pastor Ridruejo ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 9 December 1994 and registered on 26   January 1995, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows:     THE FACTS The first applicant (“the applicant mother”) was born in 1940. She is the mother of both the second applicant, P.T., born in 1959, and the third applicant, M.T., born in 1968. The applicants, all Finnish citizens, reside in Valkeakoski. Before the Court they are represented by Ms. Anu Suomela of the Association for Family Rights in Finland ( Perheen Suojelun Keskusliitto PESUE r.y. ). The respondent Government were represented by their Agents, Mr Holger Rotkirch, then Director-General for Legal Affairs in the Ministry for Foreign Affairs, and Mr Arto Kosonen, Director in the same Ministry. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. In 1975 the applicant mother was accepted as a family day carer. She was caring for her own and a few other children, including mentally disabled ones, in her home under the supervision of the local day care authority. In 1978 a third child, M., was born to her and diagnosed as suffering from Down’s syndrome. At the age of two he also began to suffer from repeated aggravated ear infections. In 1979 the applicant mother sought therapy at the Mental Health Office of Valkeakoski in order to cope with the upbringing of M. In 1981 M.’s father and the applicant mother divorced, she remaining M.’s sole custodian. In 1986 she gave up her post as a family day carer as   M. had become difficult to care for and had begun to suffer from behavioural disturbances. It had also been discovered that his hearing was severely impaired. Afterwards the applicant mother remained unemployed for a while and the family was evicted from their flat. She started to abuse alcohol. On 29 occasions from 1983 to 1990 the applicant mother voluntarily placed M. in the Centre for Mentally Disabled at Ylinen. The duration of his stays varied from a few days to a few weeks. Some of the stays were caused by the applicant mother’s experiences of burn-out and some stays were necessary for examination and therapy purposes. In 1991 the applicant mother requested that M. be placed in voluntary foster care so as to enable her to resolve her financial and drinking problems. Following the approval by the Social Welfare Board ( perusturvalautakunta, grundtrygghetsnämnden ) of Valkeakoski M. was, on 1 November 1991, placed in a foster home 70 kilometres away. The family had five children from before, two of whom being baby midgets   demanding particular care. Meanwhile, the applicant mother underwent treatment in order to reduce her alcohol consumption. She re-educated herself, qualifying to become a caretaker of hospital equipment. Soon she began to feel that her co-operation with the foster parents was not satisfactory. For instance, M. would visit her in dirty and ragged clothes. His foot hygiene would be neglected, although his feet were suffering from bacteria demanding particular care. He would tell her that he had been spanked by the foster parents. In 1992 M. was equipped with a hearing device as a result of which his behavioural disturbances apparently diminished. In the spring of 1993 the applicant mother informed the Social Welfare Board that she would take M. home. The Board objected and on 26 May 1993 it placed him in compulsory public care, considering, inter alia , that the applicant mother was unable to provide him with adequate care and sufficiently secure growth conditions. All other support measures had proved insufficient, as the applicant mother had withdrawn her consent to M.’s placement in the foster home. It was in M.’s interest to remain in that home, where he had become used to “a regular life rhythm, certain boundaries, security as well as people whom he could trust”. The applicant mother had been heard in the Social Welfare Office on 13 May 1993, whereas all applicants had been heard at the Social Welfare Board’s meeting on 17 May 1993. In her appeal to the County Administrative Court ( lääninoikeus, länsrätten ) of Häme the applicant mother objected to the care order, considering that her conditions had improved to the necessary extent. The other applicants, by now living on their own a few kilometres away from her, stated that they would assist in caring for M. The applicant mother also invoked an opinion of 19 May 1993 submitted by Ms. M.B. and Dr. R.T. of the Mental Health Office and concluding that she had managed better than the average as a custodian and mother. She further requested, inter alia , that M. himself be heard in a manner which would ensure that the opinion expressed by him was genuinely his own. On 21 September 1993 the County Administrative Court refused the request for an oral hearing and dismissed the appeal. It considered, inter alia , that M. had been sufficiently heard by a social welfare official on one occasion while he had been transported back to the foster home from a school providing therapy. Meanwhile, according to a memorandum of a social welfare official dated 18 September 1993, M. would be permitted to stay with the applicant mother for three weeks during the period October 1993-February 1994 and for one month in the summer of 1994. The foster parents would write to the applicant mother once a month. She and other relatives would be able to visit M. in the foster home provided they gave advance notice. In her appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen ) dated 3 November 1993 the applicant mother underlined that the applicants’ request for joint custody of M. was pending before the District Court ( käräjäoikeus, tingsrätten ) of Toijala. She requested to be allowed to supplement her appeal by adducing the District Court’s judgment, or that the case be remitted to the County Administrative Court should the applicants’ request for shared custody be granted. The Supreme Administrative Court obtained written observations from the Social Welfare Board. The Board recalled, inter alia , that the applicant mother herself had terminated her contract as a family day carer, “perhaps already then realising her problems”. The Board adduced new material consisting of an affidavit signed by her former family day care superior on 23 November 1993; an affidavit signed by M.’s special teacher on 29 November 1993, a report on M.’s mental development dated 22 November 1993 and submitted by Ms. L.H., a psychologist of the Pirkanmaa Municipal Federation for Social Services. In her rejoinder to the Supreme Administrative Court the applicant mother invoked an affidavit signed by the second and the third applicant on 18 January 1994; an affidavit signed by the psychologist who, in 1986, had recommended her to give up her post as a family day carer; an affidavit signed by a parish deacon concerning the care which the applicant mother had provided to other mentally handicapped children; and an affidavit signed by a further person concerning M.’s unwillingness to return to the substitute home after his stays with the applicant mother. The applicant mother argued that no weight should be given to her former employer’s affidavit unless the Court were to hear that person as a witness under oath. On 28 April 1994 the District Court granted the applicants’ request for shared custody of M. It noted, however, that the enforcement thereof would also require taking into account any orders relating to his public care. On 4 August 1994 the Supreme Administrative Court upheld the County Administrative Court’s decision of 21 September 1993. On 16 August 1994 the social welfare officials drew up a public care plan according to which M. would be able to stay with the applicant mother during the autumn, Christmas, winter and summer holidays. On 10 September 1994 the applicants requested that both the care order and the access restriction be revoked with a view to reuniting M. with them. In support of their request they proposed a plan for gradually increasing his contacts with them, starting with one visit a month. On 23 September 1994 an official of the Social Welfare Board restricted the applicants’ access to M. along the terms of the care plan of 16 August 1994. The restriction was to remain in force until 27 September 1996, when M. would reach the age of majority. The Board relied, inter alia , on an opinion of 5 September 1994 submitted by a specialist in psychiatry and mental disability who was responsible for the public care provided by foster parents within the relevant area. The Board further relied on an expert opinion of 6 September 1994. Both opinions proposed that the number of visits should not be increased. On 16 November 1994 the Social Welfare Board refused the applicants’ request for a revocation of M.’s public care and the access restriction. The Board accepted that the conditions in the applicant mother’s home were good but nevertheless considered that M. was in need of “a well-focused and consistent upbringing”. The applicants appealed to the County Administrative Court inter alia on the grounds that they had not been properly heard by the Board. They also requested an oral hearing for the purpose of hearing witnesses. On 23 February 1995 the Social Welfare Board decided to revoke M.’s public care of its own motion because the services of his foster home were no longer available to the Board. On 24 February 1995 he was returned to the applicant mother. On 29 March 1995 an official of the Board terminated the public care. On 19 May 1995 the County Administrative Court found that M. had not been heard prior to the decision of 16 November 1994. It had not been shown that his state of development justified the lack of such a hearing. However, as his public care had already been revoked by the Board of its own motion, the Court found no reason to amend the decision under appeal.   B.     Relevant domestic law The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], No. 25702/94, §§ 94-136, ECHR 2001-VII). Those provisions of particular relevance to the present case are described below. The right of the mentally disabled to special care is governed by the 1977 Act on Special Care for Mentally Disabled ( laki kehitysvammaisten erityishuollosta, lagen ang. specialomsorger om utvecklingsstörda 519/1977). The various forms of assistance guaranteed under this legislation shall normally be provided through an agreement with the custodians. If they refuse necessary assistance to a child, custody may be transferred to someone willing to accept such services. If a conflict of interests arises between the child and his or her custodian, a trustee or guardian may be appointed for the child. In extreme situations where the overall care and upbringing of a mentally disabled child is at stake the child shall be placed in public care. According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act ( hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party, inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties. According to section 47 of the Social Welfare Act ( sosiaalihuoltolaki, socialvårdslag   710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once. According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2). According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of   the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction. The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved. COMPLAINTS 1.     The applicants complain under Article 8 of the Convention that their right to respect for their family was violated on account of M.’s placement in compulsory public care. The opinions supporting the care order were not based on any interviews with them, nor on any observations of their interaction with M. To some extent the opinions were based on sheer rumours. The authorities, moreover, never showed any genuine intention to proceed to reuniting the family. On the contrary, the public care was aimed at cutting the ties between M. and the applicants. The social authorities’ finding that the applicants were unfit to care for M. was contradicted by the District Court’s finding that all three applicants were sufficiently capable to be granted shared custody of him. In addition, the care plan did not comply with domestic law. More particularly, the access restrictions preceding 23 September 1994 and the prohibition of any telephone contact between the applicants and M. were not ordered in accordance with domestic law. 2.     The applicants complain under Article 3 of the Convention that in the foster home M. was spanked and pulled by the hair. The authorities failed to intervene although the applicants had informed them of M.’s experiences. 3.     The applicants furthermore complain under Article 6 § 3 (d) of the Convention that they were denied a fair and impartial court examination. The courts never held an oral hearing and the applicants were therefore unable to have witnesses examined. The transcribed interviews and affidavits which the Supreme Administrative Court obtained through the intermediary of the Social Welfare Board did not correspond to oral testimony given under oath. The case should have been remitted to the County Administrative Court for the purpose of obtaining such testimony. 4.     The applicants complain under   Article 10 of the Convention that their freedom of expression was violated. They were unable to criticise the authorities sufficiently strongly, fearing reprisals related to the public care order and the implementation thereof. 5.     The applicants finally complain under Article 13 of the Convention that they were unable to obtain an impartial investigation of the grounds for maintaining M.’s public care. They were unable to take him to examinations which could have challenged the views consistently submitted by the same persons, all in favour of his public care. THE LAW 1.     The applicants complain that their right to respect for their family life was violated on account of M.’s public care. The opinions supporting the care order were not based on adequate material and the authorities never showed any genuine intention to reunite the family. The care plan and, in particular, the access restrictions preceding 23 September 1994 and the prohibition of telephone contact were not ordered in accordance with domestic law. The applicants invoke Article 8 of the Convention which reads, as far as relevant, as follows: “1.     Everyone has the right to respect for his private and family life, ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government considered that the applicants could no longer claim to be “victims” of a violation of the Convention within the meaning of Article 34 in so far as they had complained about the restriction on access and the continuation of the M.’s public care, as ordered on 23 September and 16 November 1994 respectively. As his public care was revoked in March 1995 the applicants achieved the desired result. In so far as the applicants had complained about the access restriction preceding 23 September 1994 and the alleged prohibition of telephone contact, the Government noted that the applicants had not immediately requested the Social Welfare Board to issue a formal decision which they could have appealed against. In the alternative, the Government argued that the complaint was manifestly ill-founded as a whole. Even assuming that “family life” existed between M. and all of the applicants at the relevant time, the interference with their right to respect for that family life was based on various provisions of the Child Welfare Act and the related Decree which were intended to protect the best interests of children. The public care orders were grounded on a number of reports by social welfare officials and specialists caring for mentally disabled. All of those reports recommended M.’s public care. The social authorities had been following the family situation for seven years. They had contemplated foster care for M. already in 1987 but had not pursued the matter, since the applicant mother had not consented to such care. The care provided to a mentally disabled child aimed at avoiding his or her permanent placement in an institution. M.’s transfer, in 1991, from the Centre for the Mentally Disabled into a foster family took place only after the applicant mother had accepted the designated family. During M.’s care in that family significant results were achieved in co-operation with his school. A termination of that care would have severed his ties with the foster parents and discontinued the co-operation with that school. Moreover, while the District Court did grant the applicants’ request for joint custody of M., it also noted that the enforcement thereof would require taking account of any orders relating to his public care. The Government further submitted that prior to 23 September 1994 the number of visits and the frequency of telephone calls had been agreed on with the applicant mother, as reflected inter alia in the care plan of 10 December 1993. The agreed practice was continued after M.’s care had become compulsory. In case of disagreement the applicant mother could have requested the Social Welfare Board to issue a formal decision which she could have appealed against. The access restriction of 23 September 1994 was issued in response to such a request. Although the number of weekend visits was not increased on 23 September 1994, M.’s holiday periods with the applicant mother had been extended to almost two months per year in the care plan of 16 September 1994. On his return from such stays, however, M.’s behaviour had clearly regressed. The Government concluded that M.’s public care was proportionate to the legitimate aims pursued and necessary in a democratic society as required by Article 8 § 2. The Government further submitted that the applicant mother was heard in the Social Welfare Office on 13 May 1993 while a care order was being contemplated. All applicants were heard at the Social Welfare Board’s meeting on 17 May 1993 which concluded in such an order being issued. The submissions prepared by counsel for the applicant mother, including a   report by the doctor in charge of her treatment since 1979, were handed to the members of the Board. In view of his mental disability M. himself had to be heard in a tactful way corresponding to his intellectual level which equalled that of a seven-year old child. A specialised official heard him in objective conditions on his way home from school on 6 May 1993. In sum, the applicants and M. were sufficiently involved in the decision-making process. The applicants maintain their complaints and contend that “family life” existed between M. and all of the applicants. The care orders were not grounded on tenable evidence but on mere suspicions and resultant far-reaching conclusions which became “facts” as soon as they had been entered in the Social Welfare Board’s records. Doctors and teachers issued statements in the case without ever having examined M. or the applicants and without verifying their home conditions. Instead of providing the applicant with a home helper as an open-care measure the social authorities began preparing for M.’s public care which was to last until he had reached the age of majority. According to M.’s foster mother, his behaviour had not regressed during his stays with the applicants. The lack of justification for the care order is shown not least by the fact that in spite of the Social Welfare Board’s refusal to terminate M.’s public care in November 1994 he was returned home three months later simply because his foster family cancelled its contract with the Board. M. then adapted very quickly to a new school. The applicants agreed to the initial restrictions on visits and telephone calls to M. only under pressure from the social authorities and being unaware of their rights. Leaving aside the Government’s preliminary objections, the Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, the K. and T. judgment cited above, § 151). The taking of a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. In this regard a fair balance has to be struck between the interests of the child in remaining in the public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent (ibid., §   178). An interference with a right guaranteed by Article 8 constitutes a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. The Court must also determine whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicants were involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see, e.g., the W. v. the United Kingdom judgment of 8   July 1987, Series A no. 121, p. 29, § 64, and the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87). In the present case M.’s placement in public care no doubt interfered with the applicants’ right to respect for their family life. The Court finds no indication, however, that this interference was not based on the Child Welfare Act or did not aim at protecting M.’s health and rights. Neither can the Court find that the social welfare authorities or the administrative courts overstepped their margin of appreciation in ordering the public care as well as in implementing and upholding it. The Court places particular weight on the numerous occasions – prior to the compulsory public care order – when the applicant mother herself had recognised that M. had been in need of care in a specialised institution. With her consent he had eventually been placed in a foster home, where he had been staying for a year and a half when she withdrew her consent to such care. At that moment there was sufficient material supporting a compulsory care order enabling him to remain in the foster family until his public care could be discontinued, which occurred less than two years later.   The Court finds no substantiation of the applicants’ contention that the restriction on access and telephone contacts which preceded the formal   decision of 23 September 1994 did not form part of an agreement between them and the social authorities as to the manner in which M.’s public care was to be implemented. The Court considers, moreover, that the restrictions were compatible with the terms of the Child Welfare Act and therefore “in accordance with the law”. They also served the legitimate aim of protecting M.’s health and rights. Summing up, the Court concludes that the Finnish authorities could reasonably consider it justified to place M. in public care. Nor has it been shown that the implementation of that care was in violation of Article 8. The Court notes, moreover, that the public care was revoked of the Social Welfare Board’s own motion some five months after the applicants had lodged an unsuccessful request to that end. Accordingly, the interference with the applicants’ rights can be considered proportionate to the legitimate aim pursued and thereby “necessary in a democratic society”. The interference was therefore justified under Article 8 § 2 of the Convention. As recalled above, Article 8 also guarantees to parents and other custodians the right to be involved, as fully as possible, in the decision-making, not least in a matter of such magnitude as involves the removal of their children from their care. The Court notes, in particular, that M.’s opinion, though not in itself decisive, was ascertained by a specialist caring for mentally disabled. Nor is there any indication that the applicants, represented by counsel, were prevented from putting their submissions to the Social Welfare Board and the administrative courts. In these circumstances the Court is satisfied that the applicants and M. were sufficiently involved in the decision-making. It follows that this complaint   must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   2.     The applicants have further complained that in the foster home M. was spanked and pulled by the hair. The authorities failed to intervene although the applicants had informed them of M.’s experiences. The applicants invoke Article 3 of the Convention which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court finds that the evidence submitted does not sufficiently substantiate this grievance so as to disclose either an appearance of treatment meeting the definition of treatment proscribed by Article 3 (see, e.g., the Raninen v. Finland judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2821 et seq., §§ 55 et seq.) or a failure on the part of the authorities to investigate suspected treatment of such nature. It follows that this complaint   must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   3.     The applicants furthermore complain that they were denied a fair and impartial court examination. The courts never held an oral hearing and the applicants were therefore unable to have witnesses examined. This grievance falls to be considered in light of Article 6 § 1 which reads, as far as relevant, as follows:   “In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... “ The Government submitted that this complaint was also manifestly ill-founded. The applicants did not request an oral hearing before the County Administrative Court or the Supreme Administrative Court, thereby waiving their right under Article 6 § 1. The Government furthermore reiterated its then reservation to this provision, to the effect that the applicants had no right to an oral hearing before either of the appellate courts.   (i)   The Court reiterates that the existence of impartiality of a tribunal for the purposes of Article 6 § 1 must be determined according to a subjective test, that is to say whether the judge held any personal prejudice or bias in a given case, and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. A s to the subjective test, the personal impartiality of a judge must be presumed until there is a proof to the contrary. Under the objective test, when determining whether there were ascertainable facts capable of raising doubts as to the impartiality of a judge, even appearances may be of a certain importance (see, inter alia , the Fey v. Austria judgment of 24 February 1993, Series A no. 255, p. 12, §§ 28 et seq.). The Court finds that the applicants’ allegation that the tribunals were partial in their case has not been substantiated and disclose no appearance of a violation of Article 6 § 1 in this respect. It follows that this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. (ii)   The Court notes that the instrument of ratification of the Convention deposited by the Finnish Government on 10 May 1990 contained a reservation, according to which Finland could not guarantee a right to an oral hearing inter alia before a County Administrative Court and the Supreme Administrative Court, in so far as the then Finnish laws did not provide such a right. This reservation was withdrawn in respect of the administrative courts as from 1   December   1996, whereas the court proceedings in the focus of the present grievance came to an end prior to that date. H aving regard to the terms of the reservation, however, Finland was thus under no Convention obligation to afford the applicants an oral hearing. The Court has already considered this result compatible with the Convention and a consequence of the operation of a valid reservation (see the Helle v. Finland judgment of 19 December 1996, Reports of Judgments and Decisions 1997-VIII, pp. 2925-2926, §§   44 and 47). It follows that this aspect of the complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention. (iii)   The Court has next examined the fairness of the proceedings. It recalls that the admissibility of evidence is primarily a matter for regulation by national law and that, as a general rule, it is for the national courts to assess the evidence before them. The Court’s task under the Convention is rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, for example, Elsholz v. Germany , no. 25735/94, § 66, ECHR 2000-VIII). The right to a fair and adversarial trial means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party. In the context of care proceedings the lack of disclosure of vital documents is capable of affecting the ability of participating parents not only to influence the outcome of the proceedings but also to assess their prospects of making an appeal (see the McMichael v. the United Kingdom judgment cited above, pp. 53-54, § 80). The applicants appear to argue that they were denied a fair hearing as the Supreme Administrative Court failed to remit the case to the County Administrative Court for an oral hearing, even though it had found it necessary to obtain written observations from the Social Welfare Board. The Court has already found that in view of the terms of her then reservation Finland was under no Convention obligation to afford the applicants an oral hearing. Against this background the Supreme Administrative Court’s refusal to remit the case does not raise any separate issue of unfairness.   It follows that this aspect of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   4.     The applicants have also complained under Article 10 of the Convention that their freedom of expression has been violated. They were unable to criticise the authorities sufficiently strongly for fear of reprisals relating to M.’s public care. The Court finds that the applicants have not sufficiently substantiated this grievance. Consequently, it finds no appearance of any violation of Article 10. It follows that this complaint   must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   5.     The applicants have finally complained that they were unable to obtain an impartial investigation into the justification for M.’s public care. They invoke Article 13 of the Convention which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The requirement flowing from this provision is absorbed by the more specific procedural guarantees of Article 6, which governs proceedings before the courts. The Court has already examined the applicants’ grievances with respect to Articles 6 and 8 and detects no separate issue   under Article 13. It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Michael O’Boyle   Nicolas Bratza   Registrar   President